C2003/2727, Transcript of Proceedings [2003] AIRCTrans 3366 (11 August 2003)

AUSCRIPT PTY LTD
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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/2727

FURNISHING INDUSTRY NATIONAL AWARD 2003

Application under section 113 of the Act
by the Construction, Forestry, Mining and
Energy Union to vary the above award re
wages and superannuation

ADELAIDE

11.10 AM, THURSDAY, 24 JULY 2003

PN1

MS SIAMI: I appear for the CFMEU.

PN2

MR SHEEHAN: I appear on behalf of Business SA.

PN3

THE COMMISSIONER: Now, who do we have interstate, thank you?

PN4

MR MOSES: I appear for Employers First.

PN5

MS BROOKS: I appear for Australian Business Industrial, Commissioner.

PN6

MS WATT: I appear for the Cabinetmakers Association.

PN7

MR CRAVEN: I seek leave to appear on behalf of the respondent members of the Furnishing Industry Association.

PN8

THE COMMISSIONER: You are an agent, or you are a solicitor, Mr Craven?

PN9

MR CRAVEN: No, I'm a full-time employee of the Furnishing Industry Association. It is just the Furnishing Industry Association is not a registered organisation, so hence we have to seek leave for our respondent members.

PN10

THE COMMISSIONER: Okay, thanks, Mr Craven. Ms Siami, do you have any objections to Mr Craven seeking leave?

PN11

MS SIAMI: No, I don't.

PN12

THE COMMISSIONER: No. Does anybody have any objections to Mr Craven seeking leave? No? Leave is granted, thanks, Mr Craven. Ms Siami.

PN13

MS SIAMI: Commissioner, as you are aware, this is an application by the CFMEU to vary a couple of provisions in the Furnishing Industry National Award 2003 and also an update for one entity in the schedule of respondents. If we start with some of the housekeeping matters, Commissioner, the notice of listing was sent to the substituted service list by facsimile on 9 July. It also contained the application and the draft, proposed draft order, as well as the order for substituted service. I've got a copy for you of that. The draft order was also sent to the parties by email on 2 July just to forewarn them about what was happening and to see what the response would be, Commissioner.

PN14

When we received the notice of listing with the amendments about the videolink, that was also faxed to the parties on 22 July, and I've got the statement of service of that as well, Commissioner.

PN15

THE COMMISSIONER: Thank you.

PN16

MS SIAMI: I thought it best in my submissions to start with perhaps a brief history and outline of the issue and how we've got here today. I thought it might assist yourself and the other parties who might have had limited involvement with the consolidation process. This award was handed down on 30 June, so in some senses it is a new award. However, the consolidation process has taken quite considerable time and has involved a number of decisions and, in fact, since about April 2001 where Commissioner Hingley issued a decision, which was PR903796, the award was supposed to be finalised.

PN17

However, there were some changes, and there was also some difficulty in handing down the award straightaway after that 2001 decision, Commissioner. Whilst that purported to settle all outstanding issues, there were some issues that arose after that that the parties discussed and in some cases amended. There were also changes as new test case standards came in, and those test case provisions were included and updated in the award, mostly at the direction of the Commission.

PN18

As I've said, there's been some unexpected and significant delay between the 2001 decision and the handing down of the award on 30 June this year. A number of those reasons were out of the hands of the parties and included considerable change in the union structure, which mostly arose out of the integration of two divisions in the CFMEU - that was the furnishing trades and the forestry division, which is now the forestry and furnishing products division, Commissioner. Obviously, as a result of this, there was considerable change in personnel, and my understanding is there was also quite considerable change in personnel for the FIAA, who had been involved in this process throughout.

PN19

There was also a High Court decision relating to the '99 award which affected this award and took further delay, and that deleted the Queensland respondents. Sorry, Commissioner, actually the High Court decision said that is what should happen, and then the Full Bench and Commissioner Hingley issued orders for that to occur. There was also a roping-in exercise that was undertaken earlier and concluded earlier this year, which held up the handing down of the national award.

PN20

So in all, Commissioner, whilst there has been a delay, it has been necessarily not in the hands of the parties and it was also significant because, whilst a consent award may not be able to be varied as soon as it is handed down, in this circumstance it is quite different because of that delay and especially, Commissioner, in the sense of the superannuation clause, where the clause was originally in the document that is the award at the moment as it currently stands. It was agreed to by the FIAA and the CFMEU and now neither party agree to that clause and have agreed on a new clause together. So my submission in that area, Commissioner, is that we are able to make this application and change the award.

PN21

THE COMMISSIONER: Right.

PN22

MS SIAMI: I will give you some background into the clauses and the - what we seek to have done here. Both the issues of the superannuation and payment of wages were raised in the consolidation process and Commissioner Hingley was very aware and we gave detailed submissions before Commissioner Hingley on both matters, and I believe that he was caught in a situation where, because he had issued an earlier decision which did touch on superannuation and payment of wages, that was the 2001 decision, he was caught and could not change those clauses. I believe that he envisaged that the best way forward was to have an application to vary the award, and in a decision he gave on 3 February of this year, which is PR92724, at paragraph (2) he said:

PN23

Herewith, I issue the relevant orders. Any further changes, other than a correcting order, if required, will require the parties to lodge a section 113 application in the normal way and satisfy the Commission that it should be approved.

PN24

This was after numerous hearings where the issue of superannuation and payment of wages had been raised with him, which is why we are at the position now where we have lodged such an application to vary those two clauses and are here before you today. In respect of superannuation, I understand that the FIAA consent to the new position and, in fact, the union and the FIAA worked closely on the draft - the proposed draft order and the proposed new clause, and there were some modifications made so that a consent position could be arrived at.

PN25

However, there has been some concerns raised, especially in the last week, Commissioner, before we were being heard today about the superannuation clause and some small issues that I know of about the payment of wages clause, and I wasn't sure how you wanted to proceed. I have prepared submissions on the arguments, if required or, if the Commissioner and the parties feel that it is more appropriate to perhaps have some negotiations or discussions on the matter, that the union is happy to support that position. We do want this issue to be resolved as quickly as possible and feel that it has been known for some time, and I understand the issue of circulating members for the respondent parties and receiving instructions from them, and that can be time consuming. However, we would ask the Commission, if it was to be adjourned, that it be brought back on in the very near future.

PN26

THE COMMISSIONER: Right.

PN27

MS SIAMI: The final part I would like to go to, which I think perhaps we could deal with and finalise today, is number 3 of the application, which relates to the schedule of respondents. That is simply an update and correction of a business name and address for the respondency list. It was highlighted during the roping-in exercise that I mentioned. However, it was too late for them to be included in that roping-in exercise, but it was agreed that it needed to be updated and changed. The information, Commissioner, was supplied by the respondent employer party, the FIAA, on behalf of their - I believe it is their member, and it was on behalf of their member that they forwarded this information and simply said if, you know, next time that we do do an application to vary the award we include that as an update.

PN28

The company in question, John Leone and Co Proprietary Limited is, to my understanding, a member of the FIAA, and they and the FIAA would consent to that update and change, and I don't believe it affects any of the other parties here today. Commissioner, if you want me to go into my full submissions now, or hear from the parties - - -

PN29

THE COMMISSIONER: Maybe it might be appropriate, Ms Siami, to hear from the other parties before we do that, okay.

PN30

MS SIAMI: Thank you, Commissioner.

PN31

THE COMMISSIONER: Thank you. Mr Sheehan.

PN32

MR SHEEHAN: Thank you, Commissioner. I acknowledge - Business SA acknowledges that we haven't been involved in any detailed discussions in the consolidation process in this particular award in the recent past. Now, there have been various reasons for this, some of which are due to changes in personnel, etcetera. However, we do confirm that we do have members who are respondent to this national award, and what we seek is to be involved in the conduct of this particular application. We have had some brief discussions with the union in relation to this application. We have indicated that we would like an opportunity to fully examine the nature of the changes sought and also the opportunity to consult with members in relation to the proposed changes and then come back to the union and have some discussions with them. We have, in fact, scheduled a meeting with the union next Thursday to commence those particular discussions.

PN33

Sir, we have asked - we have put to the union that we would like the application to be adjourned. We are suggesting a period of a month, which could allow a reasonable period of time to allow those discussions and consultations to take place and, hopefully, at the end of that, issues hopefully would have been resolved. The union have indicated that they don't have a problem with the adjournment of it. Obviously, they would want the matter brought on as soon as possible, as they have indicated. We will leave that in your hands, Commissioner. I've got probably nothing else to add.

PN34

THE COMMISSIONER: Okay, thanks, Mr Sheehan. Mr Sheehan, the detailed discussions that you wish to participate in, do they go to clause 26, payment of wages, and clause 27, superannuation? Does that also include the list of respondents?

PN35

MR SHEEHAN: No, sir. Our main issues are really in relation to those first two clauses, superannuation and payment of wages. I have taken up with my friend here the issue of the actual operative date of the consolidated award, which is a bit of a concern, I guess, but it may be something else that we discuss, but we will see what happens.

PN36

THE COMMISSIONER: Okay, all right, thank you for that. Ms Brooks.

PN37

MS BROOKS: Commissioner, we have received the application as made by the union and I have had brief discussions this morning with Ms Siami regarding that application and our request for a little more time to talk to our members and enter into some discussions with the union regarding the content of the payment of wages clause and the superannuation clause. So to that end, we support the submissions of Mr Sheehan regarding an adjournment and a period of one month in order to allow the parties to actually have some meaningful discussions. In terms of the first item relating to the respondents is, that doesn't affect us in any way so we are in the Commission's hands with how you want to deal with that.

PN38

THE COMMISSIONER: Okay. Thank you.

PN39

MS BROOKS: Thank you.

PN40

THE COMMISSIONER: Mr Moses.

PN41

MR MOSES: Thank you, Commissioner. Like my friend Ms Brooks and Mr Sheehan, Employers First are in a similar predicament where they would seek some time to consult their members and consider the application with respect to the superannuation and the payment of wages clause and we think that 4 weeks would be an appropriate time for that to occur so that those discussions can take place. With respect to the superannuation - sorry, with respect to the respondency list, I haven't received any instructions but I am not aware of there being any impact on our members with respect to that, if the Commission pleases.

PN42

THE COMMISSIONER: Thank you. Ms Watt.

PN43

MS WATT: Commissioner, The Cabinetmakers Association didn't have an opportunity to be involved in the consolidation of this award and therefore this came as a little bit of a surprise. We are currently in discussions with the CFMEU about the payment of wages clause and particularly about the superannuation clause. I don't believe that we have exhausted those discussions yet. I'm certain that we can come to a consent, Commissioner. At the same time the Association supports an adjournment and we would be in the Commission's hands for the course of the adjournment.

PN44

THE COMMISSIONER: Right. I'm sorry Ms Watt, you faded out there in the last few words.

PN45

MS WATT: We are in the Commission's hands as to the length of the adjournment.

PN46

THE COMMISSIONER: Okay. So the other parties have indicated, and I will hear from Mr Craven in a minute, but the other parties have indicated a period of a month. Do you have any objections to that period?

PN47

MS WATT: No, sir, we don't.

PN48

THE COMMISSIONER: Okay. Thank you. Mr Craven.

PN49

MR CRAVEN: Thank you, Commissioner. As Ms Siami has outlined earlier FIAA has been involved in this process throughout the last - well, over the last couple of years basically and we're in a position where we do not object to the adjournment being sought by the other parties. We do have one concern with one of the particular clauses, with the payment of wages, which I have already discussed with Ms Siami. In respect of the superannuation clause, as has been stated. that is a consent matter from our point of view and thirdly, in respect of the change in respondency, we do not object to that going ahead and we will consent to any variation that might arise out of today or future proceedings. In terms of the time difference, I appreciate the other organisations would seek 4 weeks. We don't object to that and I will leave my submissions in terms of our position until the matter is brought back on, if it pleases the Commission.

PN50

THE COMMISSIONER: Right. Thank you. Ms Watt, the - do you have any view on the Variation to Schedule A, Schedule of Respondents?

PN51

MS WATT: No, Commissioner, we have no interest in that matter and therefore no consent nor objection.

PN52

THE COMMISSIONER: Okay.

PN53

MR SHEEHAN: Commissioner, if I might just make a comment? Business SA not having the previous in-depth discussions and involvement with the consolidation process, we acknowledge that we are coming in fairly late in the piece in this matter. We will not or we don't intend to be obstructive or to delay the matter any more than we have to so we will be trying to resolve issues as soon as possible. Thank you, sir.

PN54

THE COMMISSIONER: Right. Okay. Thank you, Mr Sheehan. Now, Ms Siami, the consensus seems to be a month period for an adjournment to allow the parties to confer with their constituents as well as have some further discussions with yourself. There appears to be no objections in terms of schedule A. I am just wondering though, for tidiness, whether or not any variation to the award occurs at once rather than we may want to vary the schedule A today but then we may then have to make further variations to the clause 26.20(a).

PN55

MS SIAMI: Yes.

PN56

THE COMMISSIONER: I am just wondering for completeness and for tidiness, if we do it all at once. Is that acceptable?

PN57

MS SIAMI: Commissioner, I don't that's an issue for the union. If that's the way the Commission wants to do it we are fine with that.

PN58

THE COMMISSIONER: Okay. And is the union happy with a month period and we set a report backdate today?

PN59

MS SIAMI: If we set a report backdate today that would be very beneficial and if that gives the parties enough time to contact their members and to report back and to have further discussions if needed then we'll be fine with that.

PN60

THE COMMISSIONER: Right. Okay. Is - can we look at - is Thursday, 21 August a convenient date for the parties, that's approximately 4 weeks from today's date?

PN61

MR SHEEHAN: I don't have a problem with that, sir.

PN62

THE COMMISSIONER: Mr Sheehan, thank you. Does anyone have any - - -

PN63

MS BROOKS: I am sorry, Commissioner.

PN64

THE COMMISSIONER: Sorry.

PN65

MS BROOKS: I am sorry, Commissioner, I have another matter in another place on that day, for a whole day.

PN66

THE COMMISSIONER: Right. Is Wednesday the 20th. Is that any better?

PN67

MS SIAMI: That's fine with me, Commissioner.

PN68

MS BROOKS: Thank you, Commissioner.

PN69

MR SHEEHAN: Thank you, Commissioner.

PN70

THE COMMISSIONER: Does that suit everybody, the 20th?

PN71

MS WATTS: Yes, thank you, yes.

PN72

MR MOSES: Yes, thank you, yes.

PN73

MR CRAVEN: Yes, thank you.

PN74

MS BROOKS: Yes, thank you.

PN75

THE COMMISSIONER: Okay. Well, what I'll do, I'll set that day. It will be say 9.30 EST so that's 9 o'clock Adelaide time, if that is all right. And what we will do it will be scheduled for a report back in Adelaide with the parties currently by video link. That will be provided as well. Is that suitable for all parties?

PN76

MR MOSES: Yes, thank you.

PN77

MS BROOKS: Yes, thank you.

PN78

MS WATTS: Yes, thank you.

PN79

THE COMMISSIONER: Right. And then we'll see what progress, if any, has been made and if we need to have say, the assistance of the Commission, if that is the desire of the parties, by way of conciliation or conferencing then we can deal with it at that point. Is that okay?

PN80

MS SIAMI: That would suit the union, Commissioner, thank you.

PN81

MR MOSES: Yes, sir.

PN82

THE COMMISSIONER: All right. Thank you very much for that. The Commission will set a report back date of 9.30 am on Wednesday, 20 August, that's 9.30 am EST 9 o'clock Adelaide time, and the Commission will make itself available if on that date the parties require the assistance of the Commission by way of conference. Okay. The Commission will stand adjourned until then. Thank you very much, good morning.

ADJOURNED UNTIL WEDNESDAY, 20 AUGUST 2003 [11.35am]